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    Ann Rostow: Tough Morning at SCOTUS


    By Ann Rostow

    Tough Morning at SCOTUS

    The oral arguments before the Supreme Court in the marriage equality cases were disconcerting. I have rewritten the opening line to this column several times, but it comes down to that. I still believe we will emerge victorious, but the inner glee with which I have looked forward to the end of June has been replaced by optimistic trepidation.

    Readers, do you recall a few years back when almost all the legal activists fighting for marriage equality watched with dread as our naive allies leapt into case against Prop 8, angling for a national ruling on marriage rights that most veterans of the battle thought was premature and unlikely? Do you remember the oral arguments in that case two years ago, where the justices made clear that they had no intention of ruling that the Constitution required marriage rights for same-sex couples? Do you recall how relieved everyone was when the Court ducked the main issue, dispensing with Prop 8 without dealing us a decades-long setback?

    Well, Tuesday’s arguments provided a stark reminder of how excruciatingly difficult our position remains. Yes, I think we’ll win. But by the skin of our teeth. Why? Because for all the progress we’ve made, for all the arguments we can muster in our favor, the conservative men on this Court still believe same-sex marriage is a modern invention with tenuous roots in the Constitution. They still believe that a constitutional mandate in favor of marriage from the High Court will “end the debate” that the country has only recently engaged. They believe in a “wait and see” posture that would effectively extend the “waiting” indefinitely and usher in what attorney Mary Bonauto called “a difficult period in our nation’s history.” That’s legalese for “a chaotic free-for-all of antigay discrimination.”

    The word that kept coming to Justice Kennedy’s mind, he said, was “millennia,” specifically the millennia of man-woman marriage as measured against the scant few years of marriage equality. I’m sorry everyone, but WTF?

    What exactly did “marriage” mean back in one thousand B.C., pray tell? As Justice Ginsburg pointed out, less than a century ago, marriage was a patriarchal institution where a man determined where and how the couple would live. Women could not get loans or credit without their husband’s consent. Blacks couldn’t marry whites. Divorce involved complex legal maneuvers, or maybe a trip to Mexico.

    Gay couples have been living together out of the closet for decades as legal strangers, but what? Should we wait a few centuries to even the chronological score? When’s a good time? 2415? 2515? Star date something or other?

    Justice Alito, in turn, noted that the ancient Greeks had no problem with reserving marriage for men and women, while allowing the men to have a little gay fling on the side. Surely, he prodded Bonauto, that shows that you can hold to a heterosexual standard for marriage without necessarily having any hostility for gays? Bonauto was heroic in keeping a straight face (so to speak) under this absurd line of questioning, but again, WTF? I’m no expert on ancient Greece, but here’s the thing: homosexuality in history has no correlation to the world we live in. These Spartan warriors, or whomever Alito was referencing, did not fall in love, get engaged, have a wedding, get a job and settle down to raise kids with the little woman in the kind of domestic situation we associate with modern marriage. Nor do modern heterosexual married men today have young male sex slaves on the side. Not all of them anyway. Quite frankly, I don’t know exactly what they were up to back then, but whatever the hell it was, it has little bearing on the 14th Amendment of the U.S. Constitution in 2015.

    The Chief Justice, in turn, infuriatingly kept insisting that our side was not trying to win equal marriage rights, but was actually trying to change the definition of marriage, which he had looked up in many dictionaries. He has said this before, and it betrays his complete inability to see our cause as a legitimate demand for Equal Protection, or even a fundamental right. To the extent that Roberts sees marriage as inherently heterosexual, he simply cannot understand our position as a matter of law. Period. And he won’t. Forget about a sixth vote for marriage equality. Just forget it.

    Thomas said nothing, of course, and Scalia was his usual preposterous self. As for our four allies on the left, they were stalwarts.

    As you know, there were two arguments. The main one was whether or not there was a constitutional requirement for marriage equality, and the second was the question of whether a state should have to recognize a same-sex marriage from elsewhere in the country. Obviously, if the answer to the first question is yes, the second one doesn’t matter. As such, the arguments in the second phase presumed that the answer to question one was no.

    The interesting thing about the second argument was that it seemed clear that if the answer to question one is no, the answer to question two is also no. If the Court were to decide that marriage equality is not a constitutional mandate, there’s no basis then to insist that same-sex marriage be recognized around the country. Obviously, such a decision would effectively legalize marriage equality even after the Court had determined that states should retain the right to preserve their own antigay policies.

    I have to say that I agree. The notion that the Court will “split the baby” or “compromise” by ruling no on one and yes on two would leave the country in a royal constitutional mess. The Court seemed to realize this would be a nonsensical outcome, which gives me more hope that we will prevail on the main question.

    But here’s the other main takeaway from the arguments. I don’t know if I want to call it homophobia per se, but the level of unease surrounding the notion of gay equality remains so powerful that I can’t imagine we will win the resounding Equal Protection victory that we seek. Instead, I think we’ll see an opinion that says, not that gays are the equal of others, but that everyone deserves the fundamental right to marry, even gays.

    As we’ve discussed often enough, the Court has ruled in the past that the fundamental right to marry under the Due Process Clause applies to incarcerated felons and deadbeat dads among others. Extending it to gay couples hardly elevates us to a constitutional status that demands legal respect in other contexts. It simply gives us the right to marry, which is fantastic; don’t get me wrong.

    But it would also mean that we face years and years of political struggles to fight discrimination in work and housing and public accommodation. These struggles will be exacerbated by the flawed notion that prejudice parading around in the form of an individual’s “religious” objection to gays and lesbians is itself some kind of precious right to be protected at all costs. There’s almost a sense that “it’s only fair” that if gays get to marry, their adversaries get to treat them like dirt.

    Scalia himself has written that we can’t allow individuals to ignore public laws and policy based on faith without running the risk that every man becomes a law unto himself. What’s to stop anyone from claiming an arcane religious conflict with whatever civil obligation he or she prefers to ignore? And yet we are seeing the far right attempt to formulate a gay exception to this basic social comity. And without a strong opinion to the contrary, we will be forced to confront this trend for the foreseeable future.

    If there’s been a sense of malaise floating through my remarks so far, I’d like to add some positive spin. A negative ruling by the Court would send shock waves through the country, a country with a slim majority that favors marriage equality. A negative ruling would demolish the momentum of the gay rights movement. It wouldn’t just preserve the status quo or “let the debate continue.” It would end the debate. It would revive and invigorate the social conservative right. It would put the Supreme Court’s stamp of approval on second-class citizenship, discrimination and prejudice. It would be a Dredd Scott moment. My point is that the Court does not have an “off ramp” to use the latest expression, and I think even the conservative side knows this.

    Second, I can’t imagine that Justice Kennedy will take his legacy as the champion of gay equality and flush it down the toilet. Were he to rule against marriage equality, his decisions in RomerLawrence and Windsor would be reduced to worthless dicta, effectively overturned by a decision that leaves states free to impose the moral judgments of the majority on a disfavored class of citizens. I haven’t mentioned the arguments that were offered by the state attorneys who defended the marriage bans, but that’s because they had no logical case. (Unless you agree that the sole purpose of marriage is to create stable households for the biological children of heterosexual couples.) That said, Kennedy would not only have to turn his back on his own jurisprudence, but he would also have to come up with a new rationale for doing so. After all, Kennedy himself has made it clear that the children of gay families have as much at stake in marriage, if not more, than their parents.

    So, we will win. I think. Mary Bonauto did a fantastic job of sparring with the justices, as did Solicitor General Donald Verrilli Jr., arguing for the United States in favor of marriage equality and Douglas Hallward-Driemeier, who took on the recognition question. I just wish the justices on the right had a little less pompous respect for the venerable tradition of disdain for gay men and women.

    Bad Mood

    I’m sure there’s a lot of other GLBT news to report, but I don’t have the heart to dig around for tidbits. The Bruce Jenner story is amazing, but too big to cover in the limited space that remains. Meanwhile, the fact that Baltimore is falling apart at the seams is jarring my ability to concentrate on anything short of landmark Supreme Court news.

    No one approves of looting and riots. But if I, a white baby boomer female living in Austin, have become enraged—literally—by the routine murders of young Black men by renegade law enforcement officers, how must actual young Black men be feeling? Something has to happen. This has to stop, and yet we seem powerless as a society to find a way forward.

    Martin, Brown, Tamir Rice in the park in Cleveland, the guy killed while selling cigarettes in New York, the man shot in the back while running away, the guy who was killed by the 73-year-old volunteer sheriff, Freddie Gray—how do you sever a man’s spinal cord during an arrest? And why do people persist in noting that so-and-so might have been up to something, stealing or trespassing? Since when do police gun down people for possible links to petty crimes? Tamir Rice was playing with a realistic toy gun. So what? He was twelve years old and an officer shot him dead within three seconds of arriving at the park. Since when do senior citizens who can’t tell the difference between a Taser and a gun get to run around playing policeman like little boys?

    I know 90 percent of cops are doing good work and would never harm a citizen unnecessarily. But why do we allow these other maniacs to stay in uniform? There should be stringent regulations to make sure that vigilante cops and violent officers are taken off the force at the first sign of an unstable personality. The blue wall must come down and decent police officers should take the lead in dismantling it.

    Okay. I’m thinking my general mood today (depressed) may have had a role in my view of the High Court arguments. Maybe they weren’t that bad. Maybe we’ll get a great opinion out of Justice Kennedy. Who knows.